Wrongful Death, Or Bloody Murder?

Great game between Buffalo and Miami on November 15, 2012. The sprawling Ralph Wilson Stadium in Orchard Park NY, home to the Buffalo Bills, was packed for a Thursday night, and the Bills sent the Dolphins packing too, already laying down the groundwork for their defeat by halftime. Final score when the bout was over: 19 to 14.

And one dead.

"We didn't make any plays. It was not a good offensive performance. We had nothing going on,” Miami Dolphins coach Joe Philbin curtly conceded the next day.

True, true, all true. But the far more intriguing matter that nobody dared ask him about pertained to the odd disappearance and drowning of a 26-year-old Miami fan just behind the stadium.

That line of questioning would’ve been like rubbing salt in fresh wounds though, because everyone knows Joe Philbin lost his own son, Michael, in the exact same manner in January 2012. Philbin was with the Green Bay Packers at the time, and his boy was only 21 when he disappeared and drowned.

Foul play

The Bills/Dolphins crowd on November 15th by all accounts was a rowdy and unruly one, resulting in nearly 100 evictions or arrests by local police working in concert with the Bills’ security team. In fact, some attendees were so disgusted by the scene they exited voluntarily, complaining that fans from both sides and the stadium bouncers as well were all behaving inappropriately.

Three such spectators who will probably never be going back for a repeat performance are National Guardsman Brad Gebauer, his best friend “Tones,” a State Parks repairman, and an unnamed female who had accompanied the men to the Bills game.

The trio was viciously attacked in the parking lot as they were attempting to leave early, and although the woman was unharmed, Gebauer and Tones each sustained serious injuries.

“I have staples in the back of my head and a broken bone in my eye,” Gebauer said.

Tones is unable to speak at all; he has two rods in his jaw now and his whole mouth is wired shut.

Security had been quick to intervene in the incident, the victims were glad to report, and allegedly three men were later detained for questioning. But nothing has come of it since then, and Gebauer said he and his friends have been unable to get any answers from the Bills organization as to who actually assaulted them.

As to police intervention, the Erie County Sheriff’s patrol insist it's still looking into the matter and making progress, but a remark made by a spokesperson for the security firm in charge at the stadium seemed to contradict that claim. “We have been unable to confirm that the assailants have been identified,” he said.

A diehard dies hard

One of the individuals who was ordered to leave the Ralph Wilson Stadium that night was diehard Dolphins fan, David Gerken, who, for reasons still unknown, was intercepted on his way to the men’s room during the halftime break.

Gerken, 26, and recently named employee of the month at the plant where he was employed as a foreman, had attended the sporting event with his brother and a friend. So he cell-phoned them from outside the facility to inform them of what had just transpired, and then calmly arranged to rendezvous at nearby Tailgater’s bar after the game had ended.

He went missing instead, and his body was found early next morning in the opposite direction of Tailgater’s, face down in a creek at the bottom of a steep ravine, without a mark on it.

Or so police immediately proclaimed by declaring there was “no sign of any trauma or foul play involved” in Gerken’s drowning, although little else has been offered to support any of the contentions thus far made in this puzzling disappearance and death.

Moreover, the customary incident report that should be on file with Bills security regarding Gerken’s eviction was either never made at all, or hastily destroyed, just in case.

Was Gerken booted from Ralph Wilson Stadium for being intoxicated then, or did the young man just haplessly get caught up in a heavy-handed security sweep?

And, once outdoors, did he fall into the creek due to his drinking, or was he ambushed by somebody? Perhaps a few Bills fanatics, offended by the Dolphin’s cap he was proudly wearing, themselves having just been ejected for drunken and disorderly conduct, accosted him?

Or are security personnel somehow to blame, maybe they got a bit too carried away in executing their duties?

Hard to say, what with all the vital paperwork and surveillance feeds being actively withheld at the moment, but it seems unlikely alcohol was truly a factor in this case. Not only because Gerken’s brother and friend both say that he consumed only two or three cups of beer while at the game, but because Security, if following protocol, wouldn’t have released him in a state of inebriation so profound that it might lead to personal injury or death.

Bills’ officials and police admit as much when they state they arrested 18 people that same evening and put them in a “holding center” to sober-up, with several others sent to the hospital, allegedly requiring more intensive therapy and treatments.

Obviously Gerken wasn’t quite that wasted, so there has to be a better explanation than the elusive one-liner the Bills initially offered the day after he died: “We can confirm that the individual was ejected from the game for violating the Fan Code of Conduct.”

To date, the victim’s father remains totally in the dark as to what that violation could have been and cannot believe it was related to drunkenness, since his son planned to go to work the next morning and wasn’t heavily drinking.

“I would like to know if they did follow procedures correctly,” he said. “If something does need to change so that nobody else gets hurt, that’s wonderful. That’s all we ask for.”

Prevention & Protocols

While there may be differing points of view for the same occurrence, there is nonetheless only one truth in any given matter. It may be obvious or gleaned sometimes, but more often than not the truth, the whole truth and nothing but the truth is something that must be vigorously pried at and examined.

Which makes the task all the harder to perform if documents and film have been hidden or destroyed and certain key parties involved in the incident have all but clammed up.

Stonewalling in the present case also makes the situation rife for all kinds of inferences and speculation, too. Most, under such circumstances, probably valid…

David Gerken’s ejection must not have been warranted, did not follow protocol, and led to his death, perhaps even as a result of excessive force.

"If he was properly ejected, there would be a paper trail. Somebody should have known that he left. Family or friends, whoever he was with, should have been notified that he was removed," said an anonymous employee for the Bills security team. "Somebody's not coming up with the correct story. Somebody's not offering the information that they should be offering."

Lawyering up

Gerken was his father’s namesake, so it’s easy to guess at the magnitude of David Gerken Sr.’s loss right now, and the sorrow the man must’ve felt having been the one to find and indentify his son’s lifeless body on November 16, 2012.

The Buffalo Bills feel his pain, evidently, and they seem concerned too, but for far different reasons:

"Arrests and ejections are routine aspects of our game day security procedures. While we do our best to control rowdy behavior, we are compelled to turn away some fans at the gate, eject some fans from the stadium for various offenses, and in extreme situations, arrest fans for criminal conduct.

"In this instance, we can confirm that Mr. Gerken was ejected from the stadium for disorderly conduct at approximately 9:55 p.m. Disorderly conduct includes various forms of misbehavior. We continue to review the circumstances surrounding this particular ejection. Mr. Gerken was one of 94 fans ejected from that game. Our review of this incident is on-going and we continue to cooperate with law enforcement during its investigation."

Attorney Jim Service, general counsel for Apex Security Group, the agency in charge of policing the Bills stadium, also issued a public statement of sorts:

“Apex company policy is to make no statements to the media during an investigation by law enforcement of an incident. As such the company will be making no statements at this time.”

Conflicts & Conflicts of interest

Bills' representatives continue to emphatically assure all interested parties and the public that they’re fully cooperating with local law enforcement in David Gerken’s death inquiry. In all reality, though, those are fairly hollow assurances because, again, security at Ralph Wilson Stadium is provided in part by local law enforcement.

This might account for the sheriff department’s decision to leak to the media information regarding Gerken Jr.’s DWI arrest in 2010, while at the same time remaining fairly tightlipped about how he could have died in 2012 when he wasn’t driving and hardly had anything to drink. That is, after all, the only incident we’re really interested in.

Which begs the question: Well, what do you know? And when did you know it?

More dubious drownings of distinction

You might think it weird for a guy to drown in cold weather, especially if he’s not skating or snowmobiling or ice fishing, but since 1997 it’s become the bizarre new norm in America’s northland. Every year, for the past 15 years, hundreds of able-bodied young men just like David Gerken have been mysteriously disappearing in the months of September to April and their corpses resurfacing in nearby rivers, lakes, streams, ponds and harbors.

Almost without exception these are ruled as accidents, of course—even if a corpse is found weighted with chains and cinderblocks, as Jonathan Dailey’s was this October in Boston’s Charles River. But anybody trained in forensics and crime scene investigation can tell you that water’s the ideal place to dump the dead if you want to get rid of evidence. Pick the right lake or ocean, even, and a body may never be found again.

In that respect, the year 2012 has been a particularly grim one—add 22-year-old Indiana resident Joshua Swalls to the growing list of cold weather “drown” victims for this year’s killing season. He went missing on November 3 and his badly decomposed body was just discovered floating in a retention pond in Indianapolis. That pond had already been searched by dive teams and law enforcement.

Josh Swalls is the second young man to meet such an end in this same area and timeframe. In October, Walton Matthew Ward also vanished without a trace. His body was recovered eleven days later from the White River.

Below are a few other missing/drowned cases of historical note that bear striking similarities with Gerken’s, Dailey’s, Swalls’ and Ward’s.

• Athletic 20-year-old Chris Jenkins was captain of the lacrosse team at his university and one of its top ranked students as well. He was abducted and murdered while attending Halloween festivities in downtown Minneapolis in October 2002 and his unrecognizable corpse retrieved months later from the icy Mississippi River. It had been strategically placed less than a mile from the bar where he’d been thrown out by an off duty officer/bouncer. The MPD insisted for years that Jenkins’ so called “drowning” was an accident or suicide, until finally forced to capitulate and apologize for refusing to properly investigate it. The case has grown cold ever since then.

• Greg Hart, 23, was an expert swimmer and certified scuba diver who nevertheless “drowned” in March 2010 while celebrating a new job with his friends at a Rhode Island pub which just so happened to be owned by the wife of a local policeman. Cops refused to launch an immediate search for the missing out-of-towner, so Hart’s battered body was discovered partially submerged on a riverbank by one of his family members. Investigators were also reluctant to hand over the victim’s cell phone to the Harts; eventually, however, they relented on this and returned it to them in five pieces. Its data chip had also been tampered with.

• An eagle scout and all around athlete, Dan Zamlen ran almost 10 miles a day, but the 18-year-old freshman at the University of St. Thomas couldn’t outrun his ill-fated destiny. In the spring of 2009, weeks after he’d phoned a friend for help and then vanished, his body was retrieved from the Mississippi River. Cops had refused to promptly search for him as well, and then later smeared the straight-A student by asserting he had committed suicide because he was “conflicted” about his sexuality.

• Harvard Business student Nathan Bihlmaier was a former certified lifeguard. At 31, married and with a child on the way, he was certainly no teenager learning to hold his liquor when he was ejected from a pub in Maine in 2012 on the pretext of having insulted a woman there. She has never been identified, but his corpse was found days later at the bottom of the harbor.

• In 2009, during a midnight stop by state troopers in North Dakota, 26-year-old Ryan Ebeck strangely disappeared. Police claim the rugged, part-time logger fled from them on foot when they attempted to conduct a sobriety test on him. Eback’s body was discovered almost a month later in a waterway previously scoured by search parties. Officials deemed his drowning “an accident.”

• At over six feet and nearly 200 pounds, 18-year-old Colin Gillis was a towering youth who knew the rustic terrain and rural routes he was last seen trekking “like the back of his hand”. Regardless, he still vanished without a trace in early March of 2012, leaving no other clues at the side of the New York highway but his photo-ID and, allegedly, a sneaker.

• In 2009, bodybuilder Bryan Barker, 21, was attending a birthday party with a group of friends at a bar in downtown Milwaukee when he was asked to leave the premises and subsequently went missing. On that same night and in the same area, another of his friends was mugged and badly beaten. Barker’s corpse was discovered by a passerby three days later floating in the Milwaukee River. Police ruled he fell into the water on his own accord.

David Gerken Jr. was laid to rest on Wednesday, November 21, 2012 at Calvary Cemetery in Canandaigua, New York. The exact manner of his death has yet to be determined and the investigation concerning what led up to it is still ongoing, but the preliminary autopsy lists “accidental drowning” as the cause.

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With the purpose of writing about true crime in an authoritative, fact-based manner, veteran journalists J. J. Maloney and J. Patrick O’Connor launched Crime Magazine in November of 1998. Their goal was to cover all aspects of true crime: Read More